PUBLISHED

UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT

DARICK DEMORRIS WALKER,

Petitioner-Appellant,

v. No. 08-11LORETTA K. KELLY, Warden,Sussex I State Prison,

Respondent-Appellee. Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.Claude M. Hilton, Senior District Judge.

(1:01-cv-01196-CMH-TCB)

Argued: September 22, 2009

Decided: December 16, 2009

Before TRAXLER, Chief Judge, and GREGORY andSHEDD, Circuit Judges.

Affirmed by published opinion. Chief Judge Traxler wrote themajority opinion, in which Judge Shedd joined. JudgeGregory wrote a dissenting opinion.

COUNSEL

ARGUED: Danielle Spinelli, WILMERHALE, Washington,D.C., for Appellant. Katherine Baldwin Burnett, OFFICE OF

THE ATTORNEY GENERAL OF VIRGINIA, Richmond,Virginia, for Appellee. ON BRIEF: Craig Goldblatt, HeatherM. Zachary, D. Hien Tran, Annie L. Owens, WILMER-HALE, Washington, D.C., for Appellant. Robert F. McDon-nell, Attorney General of Virginia, Jerry P. Slonaker, SeniorAssistant Attorney General, OFFICE OF THE ATTORNEYGENERAL OF VIRGINIA, Richmond, Virginia, for Appel-lee.

OPINION

TRAXLER, Chief Judge:

Darick Demorris Walker was convicted of capital murderin the deaths of Stanley Beale and Clarence Threat and sen-tenced to death.1 In this, his fourth appearance before thiscourt during federal habeas proceedings, Walker challengesthe district court’s order rejecting, after a full evidentiaryhearing, his claim under Brady v. Maryland, 373 U.S. 83(1963), and denying his application for relief under 28 U.S.C.§ 2254. Walker contends that this court previously determinedthe Commonwealth violated Brady by failing to disclose cer-tain information to Walker’s defense team. See Walker v.Kelly ("Walker II"), No. 04-22, 195 Fed. Appx. 169 (4th Cir.May 22, 2006). By conducting an evidentiary hearing andissuing a decision on the Brady claim, the district court failed,argues Walker, to adhere to this court’s previous ruling. Forthe reasons that follow, we disagree.

1The evidence in this case is thoroughly recounted in the VirginiaSupreme Court’s decision affirming Walker’s conviction and sentence ondirect appeal, see Walker v. Commonwealth, 515 S.E.2d 565, 568-69 (Va.1999), as well as various decisions from this court during federal habeasproceedings, see, e.g., Walker v. True ("Walker I"), No. 02-22, 67 Fed.Appx. 758, 759-61 (4th Cir. May 6, 2003) (per curiam). We will recite thefacts here only to the extent necessary to address the Brady issue presentedto us.

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I.

A.

Walker contends that the prosecution failed to disclose evi-dence that would have impeached the trial testimony ofBianca Taylor, Beale’s daughter and a crucial witness for theCommonwealth.2 Bianca testified that she saw Walker breakinto her family’s apartment and shoot her father, and she iden-tified Walker at trial as the shooter.

According to Walker, the Commonwealth suppressed fourpieces of evidence that the defense would have used toimpeach Bianca’s eyewitness testimony at trial. First, Walkeralleges that the prosecution failed to disclose a SupplementaryOffense Report from Officer David Ernst (the "Ernst Report")summarizing his interview of Bianca on the night of theshooting. The Ernst report does not indicate that Biancaclaimed to have seen her father’s murder. Rather, it notes that,immediately prior to the shooting, Bianca was on the phonewith Karen Rudolph, who told Bianca that "Todd" – the nameby which Bianca knew Walker – was coming to Bianca’sapartment. According to the Ernst Report, the shooting com-menced a few moments later.

The second piece of evidence at issue is a handwritten notefrom Detective Curtis Mullins, dated the night of the shoot-ing, indicating that "13 [year-]old [Bianca] heard [a] voiceand stated that it sounded like Todd and she was positive thatit was Todd’s." J.A. 1112. Detective Mullins’s notes, how-ever, were based not on information he gleaned first-hand but

2Walker claimed that the prosecution also violated Brady by failing todisclose evidence that would have impeached the testimony of Common-wealth witnesses Tameria Patterson and Christopher Miller. The statecourt rejected this portion of Walker’s Brady claim on the merits. We areconcerned in this appeal only with Walker’s Brady claim as it relates toBianca.

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on information given to him by Officer Ernst and DetectiveJames Hickman.

Third, Walker claims the Commonwealth failed to disclosea Supplementary Report prepared by Detective Mullins (the"Mullins Report") nearly one month after Beale’s murder,indicating that Bianca "stated that she recognized the voice ofthe subject as a [black male] by the name of Todd or Ty." J.A.1112.

Fourth, and finally, Walker asserts that the prosecutionfailed to disclose the notes of Detective Hickman from thenight of the shooting. Hickman’s notes reflect that he inter-viewed Bianca and she identified "Todd" as the killer andphysically described him; however, Hickman’s notes do notexpressly indicate whether or not Bianca saw the shootingfirst hand.

B.

Walker first raised this Brady claim during state habeasreview, having not pursued it on direct appeal. The SupremeCourt of Virginia concluded that Walker’s claim was barredunder Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974), whichprecludes a habeas petitioner from asserting a claim that"could have been [but was not] raised and adjudicated at . . .trial and upon his [direct] appeal," id. at 682.3 Therefore,according to the Virginia Supreme Court, the factual and legal

3The Virginia Supreme court explained as follows:

[Walker’s] claim I in part alleges that exculpatory evidenceimpeaching the testimony of witness Bianca Taylor was withheldby the Commonwealth in violation of petitioner’s due processrights as enunciated in Brady v. Maryland, 373 U.S. 83 (1963).The Court holds that this portion of claim I is procedurallydefaulted by operation of the rule in Slayton v. Parrigan, 215 Va.27, 205 S.E.2d 80 (1974).

J.A. 402.

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basis for Walker’s Brady claim was available to the defenseat the time of Walker’s direct appeal.

Walker then sought relief in federal court under 28 U.S.C.§ 2254, raising a number of claims, including his Brady claimthat the Commonwealth withheld evidence that would haveimpeached Bianca’s credibility. Walker alleged that"[a]lthough the prosecution’s star witness [Bianca] testifiedthat she watched Walker shoot her father, it is now clear,based on evidence the prosecution withheld, that this witnessdid not see the shooting or the shooter." J.A. 417.

The Commonwealth filed a motion to dismiss, arguing thatto the extent Walker’s Brady claim related to the testimony ofBianca, it had been procedurally defaulted and was thus notamenable to review by a federal habeas court. Federal habeascourts are precluded from reviewing any claim that "a statecourt has declined to consider [on] its merits on the basis ofan independent and adequate state procedural rule." Bacon v.Lee, 225 F.3d 470, 476 (4th Cir. 2000); see Coleman v.Thompson, 501 U.S. 722, 731-32 (1991). Application of theSlayton procedural bar qualifies as such an adequate and inde-pendent state law ground. See Vinson v. True, 436 F.3d 412,417 (4th Cir. 2005). Review by a federal court is permissibleonly if Walker is able to establish cause to excuse the defaultand prejudice resulting from the alleged constitutional viola-tion. See Strickler v. Greene, 527 U.S. 263, 282 (1999); Vin-son, 436 F.3d at 417.4

Walker did not dispute that his Brady claim was procedur-ally defaulted, but he argued that he could demonstrate causeand prejudice. Specifically, Walker argued that the impeach-

4A federal habeas petitioner may also obtain review of a procedurallydefaulted claim if he shows that the court’s failure to review such a claimwill result in a fundamental miscarriage of justice. See McCarver v. Lee,221 F.3d 583, 588 (4th Cir. 2000). Walker has not advanced such a theory.See Walker I, No. 02-22, 67 Fed. Appx. at 767 n.5.

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ment evidence remained undisclosed for months after hisdirect appeal until state habeas counsel obtained it via a Free-dom of Information Act ("FOIA") request. Walker claimed,therefore, that the Commonwealth’s failure to disclose estab-lished cause in that the defense was unable to raise a claimbased on information it did not have.

The district court rejected Walker’s cause argument, con-cluding that Walker failed to rebut by clear and convincingevidence the state court’s finding that "appellate counsel wassufficiently on notice of the factual predicate of the [Brady]claim that it could have been raised on direct review." J.A.597-98; see 28 U.S.C. § 2254(e)(1). The district court notedthat Walker’s state habeas petition acknowledged that prior totrial defense counsel received a Presentence Report which ref-erenced two undisclosed police reports suggesting Bianca didnot actually see the shooting. Walker’s state habeas petition,which included a claim that defense counsel rendered ineffec-tive assistance by failing to raise the Brady issue, also allegedthat the defense received a Report of Autopsy prior to trialthat indicated the witnesses did not see the shooting. Indeed,Walker’s state habeas petition offered counsel’s notes to dem-onstrate counsel was aware of reports stating that Bianca didnot see the murder of her father. The district court found that

[t]his evidence in the record establishes that Walkerhad knowledge of the factual predicate of his Bradyclaim with regard to Bianca’s testimony prior to thefiling of his direct appeal. As a result, Walker hasfailed to establish by clear and convincing evidencethat the factual predicate of his claim was not knownto his appellate counsel prior to the filing of hisdirect appeal . . . [and] [t]hus, Walker fails to showcause for his procedural default as a result of govern-mental interference.

J.A. 599. Having concluded that Walker failed to establishcause, the district court did not address the prejudice compo-

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nent.5 The district court granted the Commonwealth’s motionto dismiss on the basis of the pleadings, state court filings andother documents presented to it—no evidentiary hearing wasconducted.

On appeal, this court affirmed and held that Walker "wasaware or should have been aware that documents had beensuppressed when he appealed his conviction." Walker I, No.02-22, 67 Fed. Appx. at 767. We reasoned that becauseWalker admitted in his state habeas petition to receiving thePresentence Report prior to trial, he was unable to rebut thestate court’s determination that he could have raised theBrady claim on direct appeal:

Indeed, as Walker admitted . . . , shortly before trialthe defense received a Presentence Report referenc-ing two undisclosed police reports containing thesame information as the [alleged undisclosed evi-dence]. This Presentence Report, by referencingthese undisclosed documents, evidenced the Com-monwealth’s suppression of the alleged Brady mate-rial. The factual basis for the assertion of Walker’sBrady claim, therefore, was available not only beforedirect appeal, but before sentencing.

Id. at 767-68 (footnote omitted). We concluded that consider-ation of actual prejudice was unnecessary in light of Walker’sfailure to establish cause. The Supreme Court subsequentlygranted Walker’s petition for a writ of certiorari, vacated thiscourt’s decision in Walker I, and remanded for this court toreconsider an ineffective assistance claim that is unrelated to

5Walker also theorized that even if the Commonwealth’s nondisclosuredid not establish cause, counsel’s ineffective assistance in failing to raisethe Brady claim on direct appeal constituted cause. The district courtaddressed whether counsel’s performance in this regard resulted in preju-dice to Walker; however, Walker’s ineffective assistance claim is not atissue in this appeal.

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the current appeal. See Walker v. True, 540 U.S. 1013 (2003).Following this court’s subsequent decision, see Walker v.True, 401 F.3d 574 (4th Cir. 2005), the Supreme Court againgranted certiorari and remanded the case to this court forreconsideration of Walker’s Brady claim in light of Banks v.Dretke, 540 U.S. 668 (2004). See Walker v. True, 546 U.S.1086 (2006).

On remand, a split panel of this court determined that thefacts, when viewed in the light most favorable to Walker asthe nonmoving party, were sufficient to support a finding ofcause and prejudice to overcome the procedural default and tonecessitate a full evidentiary hearing on the merits of theBrady claim. See Walker II, No. 04-22, 195 Fed. Appx. at175, 177.6 Noting that the prosecutor confirmed in open court,prior to trial, that the Commonwealth had provided Walkerwith the required discovery, the court concluded that the factthat "documents in Walker’s possession might suggest thatBianca provided contradicting statements at trial does notdiminish the reasonableness of Walker’s reliance on the Com-monwealth’s representation that it had complied fully withBrady." Id. at 174. Moreover, we rejected the Common-wealth’s position that "it was unreasonable for Walker to relyon the prosecution’s affirmative response since Walker couldhave reasonably discovered all the information later obtainedby his habeas counsel’s FOIA requests." Id. at 175. Thus, weheld that Walker alleged sufficient facts to establish cause.

With respect to the prejudice requirement, the majorityconcluded that "the lack of forensic or other eyewitness evi-dence made Bianca’s testimony crucial to the prosecution,"id. at 176, and that, in turn, the undisclosed impeaching evi-dence "‘could reasonably be taken to put the whole case in

6Although this opinion was not technically the second decision in theWalker series of appeals, we designate it for ease of reference as WalkerII to signify that it was the Fourth Circuit’s second decision addressingWalker’s Brady claim.

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such a different light as to undermine confidence in the ver-dict,’" id. at 177 (quoting Kyles v. Whitley, 514 U.S. 419, 435(1995)). Based on the facts before the panel on the Common-wealth’s motion to dismiss, the majority concluded that"[w]ithout Bianca’s testimony, the only evidence linkingWalker to the Beale murder is the uncorroborated testimonyof Tameria Patterson that she saw Walker enter the Randolphapartment and say ‘I shot him.’" Id. The majority concludedthat Walker demonstrated that "prejudice resulted from hisinability to develop the factual basis of his Bianca Bradyclaim at trial." Id.

Thus, having reconsidered Walker’s Brady claim in light ofBanks, the Walker II panel concluded that the district courterroneously granted the Commonwealth’s motion to dismissthe procedurally defaulted Brady claim. Given the proceduralposture of the appeal, the court essentially held that, acceptingthe allegations of Walker’s federal habeas petition as true,Walker established cause and prejudice to excuse the default.Therefore, we vacated the order of the district court and wedirected that an evidentiary hearing on the merits be held. Seeid.

On remand from this court, the district court referred thecase to the magistrate judge for an evidentiary hearing on themerits of Walker’s Brady claim. Walker offered testimonyfrom three witnesses. Rebecca Norris, co-counsel for thedefense during Walker’s 1998 trial, testified that she did notreceive any of the alleged Brady material prior to trial, andthat she would have kept any such documents in her file. And,she indicated that had lead defense counsel, the late RobertJohnson, received any such documents, he would have sharedthem with her. During the state habeas proceedings, Norristurned over her files to the Commonwealth Attorney Gener-al’s Office and permitted Walker’s habeas counsel an oppor-tunity to duplicate the contents of the file. At the time thatWalker’s trial counsel turned over Walker’s files to habeascounsel, the Brady material was not contained in the files.

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Finally, Norris testified that none of the information availableto her, including the Presentence Report, led her to believe theprosecution was withholding exculpatory information.

Walker also put up Tameria Patterson, the witness who tes-tified at trial that Walker entered an apartment she was visit-ing and stated, "I shot him." J.A. 830. At the evidentiaryhearing, Tameria testified that Bianca told her that she recog-nized the shooter’s voice while she was in the bathroom, butthat Bianca never indicated whether she actually saw theshooter. The final witness for Walker, Carolyn Patterson,essentially confirmed Tameria’s testimony, recalling thatBianca recognized the shooter’s voice but did not claim tohave seen the shooter.

The Commonwealth called five witnesses. Retired homi-cide detective James Hickman testified that he interviewedBianca on the night of the murder and took handwritten notes.According to Hickman, he responded to the homicide call andconducted informal interviews of Bianca and other witnesses.Hickman described Bianca as "very upset[,] . . . crying, [and]hysterical." J.A. 847. During the interviews, Hickman tooknotes which he turned over to lead detective Curtis Mullins;Hickman did not prepare a formal report of the interview andhad no further involvement in the case after the night of theshooting. Although Hickman’s notes did not expressly statethat Bianca saw the shooting, Hickman testified that, to thebest of his recollection, on "that particular night Biancaadvised me that she did see the shooter." J.A. 875. Further-more, Hickman testified that Bianca provided a physicaldescription of the shooter. Based on his notes and his inde-pendent recollection, Hickman testified that his notesreflected Bianca’s description of the man she saw that nightas opposed to a description of Walker from memory. Hick-man indicated that "[i]f Bianca Taylor had told [me] that, Ididn’t see him, [I would have] reflected that in [my] notes."J.A. 849.

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Finally, Hickman clarified two contradictory affidavits heexecuted regarding his interview of Bianca. In 2000, aftertalking with an investigator employed by Walker, Hickmansigned an affidavit indicating that Bianca did not state that sheactually witnessed the shooting of her father. Hickman testi-fied that he did not have access to his notes at the time hesigned the affidavit. In 2001, Hickman signed a second affida-vit after reviewing his notes, which were provided by theAttorney General’s office. The second Hickman affidavitindicated that Bianca had, in fact, described the shooter. Atthe evidentiary hearing, Hickman testified that the secondaffidavit was correct.

David Ernst, a Richmond police officer who responded tothe scene, prepared a Supplemental Offense Report in whichhe noted that Bianca stated that, prior to the shooting, she wastalking on the telephone to Ms. Randolph, who told her that"Todd and Karen are coming to talk to you." J.A. 882. Ernstdid not recall whether Bianca stated that she saw the shooter;however, he testified that if Bianca had so stated, or if she hadprovided a description of the shooter, he would have includedit in his report. Ernst did not speak with Bianca after the nightof the shooting.

Bianca Taylor also testified at the evidentiary hearing.Bianca was 13 years old at the time of the murder and 15years old when she testified at Walker’s trial. At the hearing,she reiterated much of her trial testimony, acknowledgingthat, prior to the shooting, she was on the telephone withKaren Randolph who told Bianca that "we’re coming over."J.A. 891. Bianca testified unequivocally that she saw Walkershoot her father, that she had seen him numerous times beforethat night, and that she told the detectives that she had seenWalker shoot her father. Subsequently, Bianca identifiedWalker out of a photo lineup presented to her by Officer Mul-lins, although she knew him as "Todd or Ty" at that time. J.A.894.

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Next, Joy Robinson, the lead prosecutor, recalled that shefollowed an open file policy in this case, "mak[ing] availableto the defense whatever was in [the] file." J.A. 898. Robinsontestified that the four Brady documents in question lookedfamiliar, but she could not remember specifically whether ornot they were in the file or whether she turned this informa-tion over to the defense. However, Robinson stated that "[i]fI had it, I did [turn it over]." J.A. 911. Robinson acknowl-edged that when she reviewed the file after the trial was fin-ished, she noticed that various documents – the motions, inparticular - were missing. According to her testimony, therewas never any evidence that led Robinson to believe thatBianca identified Walker as the shooter not because she sawhim but only because she recognized his voice.

Finally, Curtis Mullins, the lead detective in the Beale mur-der, testified that he did not talk to Bianca until he presentedthe photographic lineup to her a few months after the shoot-ing. On the night of the shooting, Mullins talked to Bianca’smother, Detective Hickman and possibly some other officers.Mullins’s handwritten notes reflect that Hickman reportedthat the "[d]oor was kicked in and victim shot," and that "13-year old heard voice and stated that it sounded like Todd, andshe was positive that it was Todd’s." J.A. 928. Mullins agreedthat his notes "don’t reflect that [Hickman] told [him] that[Bianca] . . . said she actually saw the person," id., but heobserved that the notes were not exhaustive. Furthermore,Mullins testified that, as far as he could recall, he neverreceived any information suggesting that Bianca did not actu-ally see the shooter.

The magistrate judge found that Walker failed to establishby a preponderance of the evidence that the alleged Bradymaterial was not disclosed to the defense by the Common-wealth, and thus that Walker failed to prove the second ele-ment of a Brady claim. See Strickler, 527 U.S. at 282(petitioner must prove that the evidence was "suppressed bythe State, either willfully or inadvertently"). Without address-

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ing the other two elements, the magistrate judge recom-mended that the district court deny Walker relief on the Bradyclaim.

The district court agreed with the magistrate judge’s factualdetermination that Walker did not establish by a preponder-ance of the evidence that the Commonwealth suppressed thealleged Brady material:

Petitioner argues that [defense counsel] Norris’s tes-timony that she did not recall receiving the four doc-uments at issue ought to satisfy [his] burden that thedocuments were not disclosed by the State. How-ever, this ignores the affirmative evidence offered byRespondent that the Commonwealth Attorney’sOffice had an open file policy, that Robinson testi-fied she gave defense counsel all evidence she pos-sessed related to the case, and that the Pre-SentenceReport contained information very similar to whatwas in [Detective] Mullins’s Report.

J.A. 1119. The district court adopted the magistrate judge’srecommended conclusion that Walker failed to establish thefailure-to-disclose element of his Brady claim.

At the behest of both parties, however, the district courtalso addressed the other two Brady elements. The court foundthat Walker failed to establish that the evidence allegedlywithheld by the Commonwealth was favorable to him. SeeStrickler, 527 U.S. at 281-82. Rejecting Walker’s view thatthe evidence in question established Bianca heard but did notsee the shooter, the district court concluded that "[t]he evi-dence at issue does not affirmatively show that Bianca toldpolice she only heard the shooter’s voice and did not seehim," as "Hickman’s notes provide a physical description ofthe shooter given by Bianca." J.A. 1120. Furthermore, thecourt found that, "[b]ased on the evidence presented at theevidentiary hearing, had Petitioner’s defense counsel

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attempted to use the evidence at issue to impeach Bianca’stestimony at trial[,] the effect would have been negligible."J.A. 1120-21.

Finally, the district court determined that the alleged Bradymaterial was not material to the outcome of Walker’s trial, seeStrickler, 527 U.S. at 282, that is, the evidence in question"could [not] reasonably be taken to put the whole case in sucha different light as to undermine confidence in the verdict,"Kyles, 514 U.S. at 435. According to the district court,

[h]ad Petitioner’s defense counsel used the evidenceat issue to challenge Bianca’s testimony that she wit-nessed the murder, the Commonwealth would haveintroduced the uncontroverted evidence presented atthe evidentiary hearing that Bianca knew Petitionerand had seen him on multiple occasions prior to theshooting. Such evidence, had it been presented,would have only bolstered Bianca’s identification ofPetitioner as the man who shot her father. Further-more, Bianca’s mother testified at trial that Biancaargued with Petitioner after he entered the apartmentbut before shooting Beale. Petitioner never chal-lenged this testimony. Had defense counsel chal-lenged that Bianca actually saw the Petitioner,Bianca’s mother’s testimony would have rebuttedthe claim.

J.A. 1121. Additionally, the court found that the materiality ofthe impeachment evidence was undercut by Tameria’s testi-mony that Walker stated "I shot him" and by evidence "show-ing that a bullet had been found on the floor of Petitioner’sapartment that had been loaded into the gun that was used toshoot Beale." J.A. 1122.

II.

Walker contends that this court resolved the merits of hisBrady claim in Walker II. In holding a full evidentiary hearing

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and issuing its decision on the merits, Walker argues, the dis-trict court impermissibly relitigated the Brady issue and vio-lated the law of the case doctrine or, more specifically, themandate rule. The law of the case doctrine promotes judicialeconomy and finality by providing "‘that when a courtdecides upon a rule of law, that decision should continue togovern the same issues in subsequent stages in the samecase.’" United States v. Aramony, 166 F.3d 655, 661 (4th Cir.1999) (quoting Christianson v. Colt Indus. Operating Corp.,486 U.S. 800, 816 (1988)). The mandate rule is "merely a spe-cific application" of this doctrine that "forecloses relitigationof issues expressly or impliedly decided by the appellatecourt." United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)(internal quotation marks omitted). In short,

once the decision of an appellate court establishesthe law of the case, it must be followed in all subse-quent proceedings in the same case in the trial court. . . unless: (1) a subsequent trial produces substan-tially different evidence, (2) controlling authority hassince made a contrary decision of law applicable tothe issue, or (3) the prior decision was clearly erro-neous and would work manifest injustice.

United States v. Lentz, 524 F.3d 501, 528 (4th Cir. 2008)(internal quotation marks omitted). As explained below, weconclude that Walker II did not hold –- and could not haveheld—that Walker was entitled to relief on his Brady claim.

There are three fundamental components to a Brady claim:(1) "The evidence at issue must be favorable to the accused,either because it is exculpatory, or because it is impeaching";(2) the "evidence must have been suppressed by the State";and (3) the evidence must be material to the defense, that is,"prejudice must . . . ensue[ ]." Strickler, 527 U.S. at 281-82.The Supreme Court has explained that the cause and prejudiceshowing necessary to overcome a defaulted Brady claim"‘parallel[s] two of the three components of the alleged Brady

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violation itself.’" Banks, 540 U.S. at 691 (quoting Strickler,527 U.S. at 282). Thus, the required showing of cause corre-sponds to the Brady requirement that the petitioner show thatthe state suppressed the evidence. See Banks, 540 U.S. at 691("[A] petitioner shows ‘cause’ when the reason for his failureto develop facts in state-court proceedings was the State’ssuppression of the relevant evidence . . . ."). The showing ofprejudice required to excuse a procedural default correspondsto the Brady prejudice requirement. See id. ("[C]oincidentwith the third Brady component (prejudice), prejudice withinthe compass of the ‘cause and prejudice’ requirement existswhen the suppressed evidence is ‘material’ for Brady pur-poses.").

Walker’s argument is premised on the interplay between"cause and prejudice" and the second and third elements of aBrady claim. His primary focus is on language in Banks stat-ing that "if [petitioner] succeeds in demonstrating ‘cause andprejudice,’ he will at the same time succeed in establishingthe elements of his . . . Brady . . . claim." Id. (emphasisadded). Based on Banks, Walker contends that when theWalker II panel concluded that he successfully demonstratedcause and prejudice, it necessarily concluded that he simulta-neously established the corresponding Brady elements—thatthe Commonwealth suppressed evidence and that the evi-dence was material to the defense. As for the remaining Bradyelement, Walker argues that Walker II also found that heestablished that the evidence in question was favorable.

Walker misreads the scope of Walker II. First, the majorityopinion did not hold that Walker successfully established thatthe Commonwealth either suppressed the evidence at issue orthat the evidence was material. Indeed, the majority madevery clear that Walker’s showing was sufficient to overcomethe procedural default hurdle and to allow him to pursue hisBrady claim:

[W]e hold that Walker has established sufficientcause and prejudice to overcome the procedural

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default of his Bianca Brady claim and that an eviden-tiary hearing on the merits of his Bianca Bradyclaim is appropriate. Accordingly, the judgment ofthe district court is vacated and this case is remandedfor an evidentiary hearing on Walker’s Bianca Bradyclaim.

Walker II, 195 Fed. Appx. at 177 (emphasis added). It couldnot be more plain from this language that the panel was mak-ing no decision whatsoever with regard to the merits of Walk-er’s Brady claim except to direct the district court to conductan evidentiary hearing so that the merits could then bedecided. The question before this court in Walker I waswhether the district court properly granted the Common-wealth’s motion to dismiss the defaulted Brady claim on thebasis that Walker failed to establish cause and prejudice. TheSupreme Court’s remand for reconsideration in light of Banksdid not change the posture of the case—Walker II stillinvolved an appeal from an order granting the Common-wealth’s motion to dismiss for procedural default. Thus, theWalker II panel was tasked with reconsidering whether Walk-er’s allegations were sufficient to establish cause and preju-dice to excuse the default and permit consideration ofWalker’s Brady claim on the merits. Not only did Walker IInot make any factual or legal determinations regarding theelements of a Brady claim – as Walker suggests – but itexpressly did not reach the merits and limited its analysis tothe procedural default issue. See id. at 175 ("[W]e find thatWalker has established cause such that he may be entitled toan evidentiary hearing on his Bianca Brady claim.") (empha-sis added); id. at 177 ("[W]e find that Walker has establishedthat actual, significant prejudice resulted from his inability todevelop the factual basis of his Bianca Brady claim at trial.").

Furthermore, we reject Walker’s argument that even ifWalker II did not expressly determine that he established atleast two of the three elements of his Brady claim, then theSupreme Court effectively did so in Banks when explaining

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that, by establishing cause and prejudice to excuse a proce-dural default, the petitioner simultaneously established therequisite Brady elements. See Banks, 540 U.S. at 703. Bankswas decided in light of a record developed through a full-blown evidentiary hearing on the Brady issue. See id. at 684-86. By contrast, there had been no such evidentiary hearing atthe time Walker II was decided; the matter was before theWalker II panel on a motion to dismiss. For purposes of theCommonwealth’s motion to dismiss, the record in Walker IIconsisted of the factual allegations set forth in the pleadingswhich this court was required to accept as true, along withdocuments attached from the state habeas record. There wasno evidence from the Commonwealth, however, regardingwhat information was or was not given to defense counsel onthe issues raised.

In proceedings under § 2254, the familiar standards in Rule12(b)(6) of the Federal Rules of Civil Procedure apply to thegovernment’s motion to dismiss. See Walker v. True, 399F.3d 315, 319 n.1 (4th Cir. 2005); 28 U.S.C. § 2254, RulesGoverning Section 2254 Cases in the United States DistrictCourts, Rule 11 (incorporating the FRCP "to the extent thatthey are not inconsistent with any statutory provisions orthese rules"). Thus, a motion to dismiss a § 2254 petitionunder Rule 12(b)(6) tests the legal sufficiency of the petition,requiring the federal habeas court to "assume all facts pleadedby the § 2254 petitioner to be true." Wolfe v. Johnson, 565F.3d 140, 169 (4th Cir. 2009) (internal quotation marks andalteration omitted). Because the Commonwealth filed itsanswer to Walker’s petition and its motion to dismiss simulta-neously, it technically should have filed the motion underRule 12(c) as one for judgment on the pleadings. See BurbachBroad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002); Edwards v. City of Goldsboro, 178 F.3d231, 243 (4th Cir. 1999). We will construe the Common-wealth’s motion as a motion under Rule 12(c) which isassessed under the same standard that applies to a Rule12(b)(6) motion. See Edwards, 178 F.3d at 243.

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In assessing whether the § 2254 petition states a claim forrelief, the district court must consider "the face of the petitionand any attached exhibits." Wolfe, 565 F.3d at 169 (internalquotation marks omitted). Here, the district court was pre-sented with a substantial amount of material from the recordof the state habeas proceeding, including affidavits and evi-dence presented at trial. A court may consider such materialswithout having to convert the Rule 12(b)(6) motion to one forsummary judgment under Rule 56(b). Moreover, a federalcourt may consider matters of public record such as docu-ments from prior state court proceedings in conjunction witha Rule 12(b)(6) motion. See Henson v. CSC Credit Servs., 29F.3d 280, 284 (7th Cir. 1994).

We read nothing in Banks that renders the procedural con-text meaningless. Walker II clearly and expressly held that,assuming the truth of Walker’s assertions, he came forwardwith sufficient evidence to survive the Commonwealth’s dis-positive motion and advance his claim for a merits determina-tion. Thus, the district court did precisely what it wasexpressly instructed to do –- conduct an evidentiary hearingon the Brady issue and render a decision on the merits.

III.

Walker next contends that even if the district court properlyconducted an evidentiary hearing, the evidence developed atthe hearing did not differ materially from the facts before thecourt in Walker II. Thus, Walker argues, the district court wasobligated to adhere to this court’s determination in Walker IIthat, for purposes of the Commonwealth’s motion to dismiss,Walker alleged sufficient facts to establish that the prosecu-tion failed to disclose the Brady material and that Walker suf-fered actual prejudice from the nondisclosure of this evidence.According to Walker, no additional evidence was adducedthat would cast doubt onto these conclusions.

We disagree. Walker’s argument appears to rest on a cou-ple of false premises. The first presumes that Walker II made

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a merits determination that the Commonwealth committed aBrady violation, and the second presumes that Walker II’sconclusions govern unless "called into question" by new evi-dence presented at the hearing. The first is false for the rea-sons explained in detail above. The second is false in that itsuggests the issue before the district court was whether theCommonwealth produced sufficient additional evidence torebut the presumptive Brady violation. Moreover, Walker’sargument subverts the burden of proof, which belonged tohim on remand. See Garlotte v. Fordice, 515 U.S. 39, 46(1995).

The issue before the district court on remand was simplywhether Walker’s proof satisfied the three elements of aBrady claim. We review the district court’s legal conclusionsde novo and its findings of fact for clear error. See Quesin-berry v. Taylor, 162 F.3d 273, 276 (4th Cir. 1998); cf. Monroev. Angelone, 323 F.3d 286, 300-01 (4th Cir. 2003) (reviewingfor clear error the district court’s conclusions regardingwhether the habeas evidence established the elements of aBrady claim). As discussed herein, we conclude that the dis-trict court did not clearly err in finding that Walker failed toprove that the evidence was "suppressed by the State" and thatthe district court properly determined that no prejudice "en-sued" from the alleged nondisclosure. Strickler, 527 U.S. at282.

Favorability of the Items Allegedly Suppressed.

In order to establish a Brady violation, the evidence sup-pressed by the state "must be favorable to the accused, eitherbecause it is exculpatory, or because it is impeaching." Id. at282. As noted previously, the district court concluded thatWalker failed to establish by a preponderance of the evidencethat the items allegedly withheld were favorable to Walker’sdefense. The court explained that

[t]he evidence at issue does not affirmatively showthat Bianca told police she only heard the shooter’s

20 WALKER v. KELLY

voice and did not see him. Indeed, Hickman’s notesprovide a physical description of the shooter givenby Bianca. Moreover, the evidence presented at theevidentiary hearing shows that Bianca was hystericaland emotionally distraught when interviewed bydetectives on the night of her father’s murder. Shehas no independent recollection regarding what shetold the detectives . . . Based on the evidence pre-sented at the evidentiary hearing, had [Walker’s]defense counsel attempted to use the evidence atissue to impeach Bianca’s testimony at trial theeffect would have been negligible.

J.A. 1120-21.

Walker contends that the district court applied the wronglegal standard in determining whether the evidence at issuewas favorable. Specifically, Walker argues that the districtcourt improperly conflated the issue of whether the allegedundisclosed evidence was favorable with the separate issue ofwhether it was material in light of the record as a whole. SeeKyles, 514 U.S. at 451 (recognizing that the "favorable ten-dency" of a given piece of evidence should be assessed with-out regard to the "weight of the evidence" as a whole);Strickler, 527 U.S. at 282 (concluding that the impeachingcharacter of the evidence in question was apparent from thecontrast between the witness’s trial testimony and the undis-closed evidence).

It is somewhat unclear whether the district court based itsconclusion on the effect of the alleged Brady documents onthe trial as a whole in light all the evidence, as opposed to theimpeachment character of the alleged Brady documents, ifany. During the evidentiary hearing, Bianca affirmed theaccuracy of her trial testimony that she heard the front doorbeing forced open, saw Walker enter and then saw him shoother father. She emphatically rejected the suggestion that shemight have told officers that she recognized the shooter by

21WALKER v. KELLY

voice, not sight, because she "did see him." J.A. 890. Her tes-timony, however, may go to the weight of the so-calledimpeachment evidence rather than its tendency to contradictthe Commonwealth’s star witness. See Kyles, 514 U.S. at 451.

Because the district court’s decision can easily be affirmedon its disposition of the suppression and materiality Bradyelements, however, we need not determine whether the dis-trict court properly concluded that Walker failed to establishthat the evidence was favorable.

Suppression of the alleged Brady material.

In arguing that the evidence does not permit us to affirmthe district court’s finding that he failed to prove the Com-monwealth suppressed the Brady material, Walker points toevidence showing that the documents were not in defensecounsel’s files at the time the files were surrendered to habeascounsel. Indeed, the parties stipulated at the evidentiary hear-ing "that on the date that Mr. Walker’s habeas counselreceived the files from Mr. Walker’s trial counsel, . . . [thedocuments] were not in those files." J.A. 825. The record alsocontained an affidavit from Rebecca Norris, Walker’s trialcounsel, indicating that prosecutor Joy Robinson provided thedefense team with Beale’s autopsy report, an offense report,crime scene photos, and other items; however, Norris indi-cated that "Robinson never provided any additional informa-tion that would have alerted us that it was possible that Biancamay not have actually seen Walker enter her home." J.A. 581.At the hearing, Norris testified that she did not "believe" shereceived any of the alleged Brady material prior to trial andthat she would have kept them in the file as a matter of courseif she had received them. And, Norris reaffirmed her positionthat "Joy Robinson never told [her] that there was any evi-dence that [Bianca] didn’t see the shooter but only heard hisvoice." J.A. 823. Finally, Walker also highlights prosecutorRobinson’s testimony that she could not recall whether she

22 WALKER v. KELLY

had the Brady materials in her files prior to trial or whethershe specifically disclosed these items to the defense.

Having rejected Walker’s view that Walker II establishedbinding factual determinations, we review the district court’sfindings under the deferential clear error standard of review:

If the district court’s account of the evidence is plau-sible in light of the record viewed in its entirety, thecourt of appeals may not reverse it even though con-vinced that had it been sitting as the trier of fact, itwould have weighed the evidence differently. Wherethere are two permissible views of the evidence, thefactfinder’s choice between them cannot be clearlyerroneous.

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74(1985)). A district court’s finding of fact is "‘clearly errone-ous’ when, although there is evidence to support it, thereviewing court on the entire evidence is left with the definiteand firm conviction that a mistake has been committed."United States v. Gypsum Co., 333 U.S. 364, 395 (1948).

Although there is evidence in the record that supportsWalker’s position, the district court’s conclusion is certainlyplausible in light of the evidence as a whole and the allocationof the burden of proof to Walker. Robinson testified that sheobserved an open file policy in the Walker case and that she"ma[d]e available to the defense whatever was in [her] file."J.A. 898. According to Robinson, the alleged Brady materialswere items that her office commonly received from the policedepartment; Robinson typically included in her case file"whatever the police department had." J.A. 900. For that rea-son, and because Robinson testified that she was "very famil-iar" with the alleged Brady documents, Robinson believedthat it was "probable" that she had the items at issue in herfiles and that, in turn, she disclosed these items to defensecounsel, as was her custom. Moreover, Robinson reaffirmed

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at the hearing her affidavit testimony suggesting that the attor-neys discussed the documents at issue:

In this case I distinctly recall having a conversationin my office with one of Walker’s attorneys aboutreports that Bianca apparently told police that sherecognized Walker’s voice. I also remember tellingthe defense that despite these reports, Bianca hadpicked Walker out of a photo . . . lineup.

J.A. 906.

Norris’s testimony, as well, supports the conclusion that thedistrict court did not commit clear error in determining thatthe Commonwealth turned over these materials to the defense.For example, Norris testified that the defense files wereincomplete, having once contained "investigatory reports" and"offense reports." J.A. 802. Norris also admitted that she wasunable to say with certainty that her co-counsel gave her allof the information in his possession, although Norris did notbelieve that co-counsel would have withheld anything fromher. Furthermore, Norris acknowledged that, prior to trial, shehad the Medical Examiner’s report which contained a state-ment that "[w]itnesses inside the home heard the shots but didnot witness the shooting." J.A. 810. Norris also had the pre-sentence report which incorporated a statement from the Mul-lins Report that Bianca "recognized the voice of the suspectas a black male by the name of Todd or Ty." J.A. 820. And,the record includes Norris’s handwritten, pre-trial notes,reflecting that she was aware of the information included inthe alleged Brady material.7

In light of the totality of the evidence, the district courtproperly determined that Walker failed to prove by a prepon-

7In pertinent part, her notes posed the question whether the defensecould "get in[to]" evidence the "Autopsy [which] says no witnesses onBeale" or the "Offense Rep[or]t [which] says no witnesses." J.A. 1017.

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derance of evidence that the Commonwealth suppressed theitems at issue.

Materiality of the suppressed evidence.

Brady "does not ‘automatically require a new trial when-ever a combing of the prosecutors’ files after the trial has dis-closed evidence possibly useful to the defense but not likelyto have changed the verdict.’" Moseley v. Branker, 550 F.3d312, 318 (4th Cir. 2008) (quoting United States v. Bagley, 473U.S. 667, 677 (1985)) (internal quotation marks omitted). Evi-dence is considered material when it "could reasonably betaken to put the whole case in such a different light as toundermine confidence in the verdict." Kyles, 514 U.S. at 435."The question is not whether the defendant would more likelythan not have received a different verdict with the evidence,but whether in its absence he received a fair trial, understoodas a trial resulting in a verdict worthy of confidence." Id. at434.

A glaring preliminary problem for Walker is that none ofthe Brady documents were independently admissible toimpeach Bianca because she did not prepare the documents oradopt or subscribe to the statements contained therein. SeeUnited States v. Barile, 286 F.3d 749, 757 (4th Cir. 2002)(noting that "[o]nly prior inconsistent statements made by thewitness are admissible as impeachment evidence") (emphasisadded); United States v. Saget, 991 F.2d 702, 710 (11th Cir.1993) ("[W]e conclude that a witness may not be impeachedwith a third party’s characterization or interpretation of a priororal statement unless the witness has subscribed to or other-wise adopted the statement as his own."). Walker’s defenseteam would have been forced to call officers Hickman, Mul-lins, and Ernst as witnesses to testify about their respectivereports and interview notes. Of course, having the benefit ofa full-blown evidentiary hearing after remand, we now knowhow these witnesses would have testified. For example,Detective Hickman testified that Bianca did tell him that she

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saw Walker murder her father even though his notes did notso reflect.

Moreover, even if the alleged Brady evidence could beused to impeach Bianca’s testimony that she saw Walkershoot her father, there was substantial evidence, as noted bythe district court, that the Commonwealth would have offeredin rebuttal. For example, the evidence is uncontroverted thatBianca had seen Walker before on many occasions. More-over, Bianca’s mother testified that Bianca argued withWalker after he entered the apartment but before he shotBeale. Tameria Patterson testified that on the night of theshooting, Walker entered her apartment and stated "I shothim." Additionally, the Commonwealth presented evidencethat a round of ammunition that had been loaded into the mur-der weapon was recovered from the floor of Walker’s apart-ment.

In light of the evidence presented at the hearing and therecord in its entirety, we conclude that the district court prop-erly determined that, even if Walker were able to show thatthe evidence at issue was withheld and that it was favorableto him, the alleged Brady material does not undermine confi-dence in the guilty verdict.

IV.

For the foregoing reasons, the decision of the district courtis affirmed.

AFFIRMED

GREGORY, Circuit Judge, dissenting:

Today, the majority affirms the district court’s dismissal ofWalker’s Brady claim in this capital case only by departingfrom this Court’s prior decision in Walker II, 195 Fed. App’x169 (4th Cir. 2006). Having heard Walker II, I disagree with

26 WALKER v. KELLY

the majority’s interpretation of the case. This Court’s determi-nations in Walker II that Walker established cause and preju-dice to overcome procedural default were dispositive ofWalker’s Brady claim. Therefore, I respectfully dissent.

I.

It is not Walker, but the majority, that "misreads the scopeof Walker II." (Maj. Op. at 16.) This Court’s decision inWalker II that Walker had established cause and prejudice toovercome procedural default meant that he simultaneouslysatisfied two of the three components of his Brady claim, andthe Court’s other determinations were necessarily dispositiveof the third component. Therefore, the district court’s decisionto disregard this Court’s prior determinations of law and factviolated the law of the case doctrine, or more specifically, themandate rule.

A.

In Strickler v. Greene, 527 U.S. 263, 282 (1999), theSupreme Court stated that the elements required to demon-strate procedural default—cause and prejudice—"parallel twoof the three components of the alleged Brady violation itself,"namely suppression and prejudice. Accord Banks v. Dretke,540 U.S. 668, 691 (2004). The Banks decision not only reaf-firmed the observation laid out in Strickler, but also elabo-rated on the overlap between these two tests:

Corresponding to the second Brady component (evi-dence suppressed by the State), a petitioner shows"cause" when the reason for his failure to developfacts in state-court proceedings was the State’s sup-pression of the relevant evidence; coincident withthe third Brady component (prejudice), prejudicewithin the compass of the "cause and prejudice"requirement exists when the suppressed evidence is"material" for Brady purposes.

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Id.

After finding that Walker established cause and prejudiceto excuse the procedural default of his Brady claim, JudgeFloyd, writing for the majority in Walker II, concluded "thatan evidentiary hearing on the merits of [Walker’s] BiancaBrady claim is appropriate," and thus remanded the case tothe district court for an evidentiary hearing. 195 Fed. App’xat 177. As I pointed out in my concurrence, "Walker’s show-ing of cause and prejudice is not merely sufficient to over-come the procedural default, but also to satisfy the second andthird elements of a Brady claim" and ultimately to establisha Brady violation. Id. at 179 (Gregory, J., concurring).

As observed in Banks, a defendant who shows causeand prejudice to excuse a procedural default simulta-neously satisfies the second and third elements of aBrady claim—evidence suppressed by the state andprejudice, respectively. See Banks, 540 U.S. at 691.Without question, the first Brady element—the sup-pressed evidence is favorable to the accused—is sat-isfied here. See Strickler v. Greene, 527 U.S. 263,281-82 (1999) (setting forth the elements of a Bradyclaim). Indeed, the undisclosed reports contain pow-erful impeachment material, which calls into ques-tion the veracity of Bianca’s testimony. Thus, Ibelieve that the conclusion that a Brady violationoccurred flows from the finding of cause and preju-dice.

Id. (Gregory, J., concurring).

Even the dissent indicated that Judge Floyd’s conclusion asto Walker’s showing of cause and prejudice "means thatWalker has satisfied two of the three elements of a successfulBrady claim," suppression and prejudice. Id. at 184 n.4 (Wil-liams, J., dissenting).

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The majority therefore remands for the district courtto determine only whether Walker has shown thethird element of a Brady claim; that is, that "the evi-dence at issue is favorable to [Walker], eitherbecause it is exculpatory or because it is impeach-ing." Although the majority strangely refrains fromaddressing this legal question, its statement that"[t]he withheld reports provide persuasive evidencethat Bianca did not see the shooter the night of [herfather’s] murder," answers this question in the affir-mative. In essence, then, as suggested by JudgeGregory’s concurrence, the majority opinion resultsin an inevitable grant of Walker’s § 2254 petition.

Id. (Williams, J., dissenting) (internal citations omitted).

Thus, both the concurrence and dissent in Walker II cor-rectly noted that, under Strickler and Banks, Judge Floyd’smajority opinion necessarily meant that Walker had satisfiedthe suppression and prejudice components of the Brady claimitself. See 195 Fed. App’x at 179 (Gregory, J., concurring),184 n.4 (Williams, J., dissenting). The majority wholly disre-gards these two opinions, instead altering this Court’s analysisof the facts when the facts have not changed. While themajority affords no weight to the clear views of a majority ofthe panel members in Walker II on the significance of thatcase’s holding, surely it does not question the intent of JudgeFloyd’s majority opinion. Judge Floyd simply found an evi-dentiary hearing to be appropriate, providing the Governmentwith an opportunity to produce evidence different on Walk-er’s Brady claim than what had been shown before this Court.Indeed, the majority states that "[t]here was no evidence fromthe Commonwealth . . . regarding what information was orwas not given to defense counsel on the issues raised." (Maj.Op. at 18.) Given that no evidence was ultimately presentedthat was significantly different from that before this Court inWalker II, the district court was not free to depart from thisCourt’s prior determinations.

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At oral argument before this Court, the Warden repeatedlyasserted that Walker chose to not put evidence on at the evi-dentiary hearing. This argument is incorrect at best, as Walkerdid introduce evidence. The argument also demonstrates theaffront to fairness that has occurred here. Walker proved hisBrady claim before this Court in Walker II. In a light mostgenerous to the Warden, the evidentiary hearing was grantedeither to allow the Government to bring new evidence to lightin order to avoid summary judgment in favor of Walker or todecide only the issue of favorability. However, the effect ofthe majority’s approach in this case is that Walker was forcedto relitigate his claim until the Warden prevailed.

Furthermore, irrespective of the import of the holdings inStrickler and Banks, the express determinations in Walker IIconclusively establish the suppression and prejudice compo-nents of Walker’s Brady claim. With regard to the suppres-sion component, this Court found that "the prosecution failedto disclose Brady material" when "the Commonwealth knewof, but failed to disclose, police reports that contain evidencewhich challenges the credibility of Bianca Taylor’s allegedeyewitness testimony." Walker II, 195 Fed. App’x at 172.With regard to the prejudice component, this Court concludedthat "[g]iven the dearth of physical evidence and the centralityof Bianca’s testimony, the withheld evidence ‘could reason-ably be taken to put the whole case in such a different lightas to undermine confidence in the verdict.’" Id. at 177 (quot-ing Kyles v. Whitley, 514 U.S. 419, 435 (1995)). This conclu-sion in fact mirrors the governing standard for demonstratingprejudice for purposes of a Brady violation. See Kyles, 514U.S. at 435.

While the majority opinion in Walker II did not expresslystate that the third component of the Bradyclaim—favorability—had been demonstrated by Walker, theCourt’s findings leave no doubt that the favorability compo-nent had been established.* The opinion found that the with-

*Both the concurrence and dissent in Walker II recognized that thedeterminations by the majority opinion necessarily meant that the favora-

30 WALKER v. KELLY

held police reports "contain evidence which challenges thecredibility of Bianca Taylor’s alleged eyewitness testimony,"195 Fed. App’x at 172, and "provide compelling evidencesuggesting that Bianca never saw the intruder the night of themurder and that she based her identification of Walker solelyon the intruder’s voice," id. at 173. The opinion concluded:"As such, the withheld documents would have provided sub-stantial evidence impeaching Bianca’s trial testimony that shesaw the person who shot her father." Id. at 174. According toStrickler, this type of impeachment evidence is, by definition,"favorable to the accused" for purposes of proving a Bradyviolation. See 527 U.S. at 281-82.

For its part, the majority modifies the previous determina-tions made by this Court by claiming that in Walker II, wewere merely accepting Walker’s pleadings as true for pur-poses of determining whether his procedural default wasexcused, rather than evaluating the facts as would be done forpurposes of evaluating the Brady claim itself. The majorityeven goes so far as to declare that Walker II expresslyassumed the truth of Walker’s assertions. This is plainly notthe case. The opinion in Walker II never made such assump-tion, explicitly or implicitly. Instead, the Court "[v]iew[ed]the facts of the case at bar through the lens of Banks." 195Fed. App’x at 172.

In arriving at its interpretation of Walker II, the majorityconflates the standard a court uses in ruling on a motion todismiss with the standard it uses to determine whether a peti-tioner has put on evidence to overcome procedural default.The Banks decision is particularly instructive in this regard,for as in Banks, the lower court here dismissed Walker’sBrady claim on account of procedural default. See 540 U.S.at 689, 691. Yet the Banks decision acknowledged that the

bility component had been satisfied. See 195 Fed. App’x at 179 (Gregory,J., concurring), id. at 184 n.4 (Williams, J., dissenting).

31WALKER v. KELLY

standard for showing cause and prejudice to excuse proce-dural default is the same as that for establishing the underly-ing Brady claim. See id. at 691 ("[I]f Banks succeeds indemonstrating ‘cause and prejudice,’ he will at the same timesucceed in establishing the elements of his . . . Brady . . .claim.") Here, while the district court had not held an eviden-tiary hearing on the issue of procedural default, we reachedour decision based on evidence beyond the pleadings, includ-ing the affidavits of counsel and police officers involved inthe investigation of the Beale murder. Thus, when this Court"[v]iew[ed] the facts of the case at bar through the lens ofBanks," 195 Fed. App’x at 172, it did not, and indeed couldnot, view the facts in the light most favorable to Walker.

B.

Because the majority misinterpreted the effect of thisCourt’s findings and conclusions in Walker II on the merits ofWalker’s Brady claim, it failed to determine whether the dis-trict court violated the mandate rule by denying Walker’smotion for summary judgment and holding an evidentiaryhearing on the Brady claim. "Few legal precepts are as firmlyestablished as the doctrine that the mandate of a higher courtis ‘controlling as to matters within its compass.’" UnitedStates v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (quoting Spraguev. Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939)). Accordingto Bell, "[b]ecause this mandate rule is merely a specificapplication of the law of the case doctrine, in the absence ofexceptional circumstances, it compels compliance on remandwith the dictates of a superior court and forecloses relitigationof issues expressly or impliedly decided by the appellatecourt." Id. (internal quotation marks and citations omitted);see also Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4thCir. 1988) ("[T]he [law of the case] doctrine applies both toquestions actually decided as well as to those decided by ‘nec-essary implication’ . . . ."). Thus, on remand "a district courtmust, except in rare circumstances, implement both the letterand spirit of the . . . mandate, taking into account [our] opin-

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ion and the circumstances it embraces." Bell, 5 F.3d at 66-67(alteration in the original) (internal quotation marks and cita-tions omitted). The majority fails to enforce this law.

Even though the majority in Walker II "remanded for anevidentiary hearing on Walker’s Bianca Brady claim," 195Fed. App’x at 177, the district court was bound by the find-ings and conclusions in that opinion, which by necessaryimplication required the granting of summary judgment infavor of Walker. Cf. Volvo Trademark Holding Aktiebolagetv. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007) (con-cluding that this Court’s determination that defendant couldstate a claim against plaintiff under a statute necessarilyimplied that the statute applied to plaintiff, and thus the dis-trict court did not err in refusing to allow plaintiff to argue onremand that the statute was inapplicable). "A mandate from[an appellate] court ordering a new trial does not preclude thedistrict court from entering summary judgment if all of theappropriate requirements are met." Perlmutter v. U.S. GypsumCo., 54 F.3d 659, 662 (10th Cir. 1995) (alteration in the origi-nal) (internal quotation marks and citation omitted); Publish-ers Res., Inc. v. Walker-Davis Pubs., Inc., 762 F.2d 557, 559-60 (7th Cir. 1985).

Nor are there "exceptional circumstances" in this case thatwould compel the district court to disregard our findings andconclusions. The Fourth Circuit has identified three categoriesof exceptional circumstances: "(1) a subsequent trial producessubstantially different evidence, (2) controlling authority hassince made a contrary decision of law applicable to the issue,or (3) the prior decision was clearly erroneous and wouldwork manifest injustice." Sejman, 845 F.2d at 69 (internalquotation marks and citation omitted); accord United Statesv. Aramony, 166 F.3d 655, 661 (4th Cir. 1999). The secondand third of these circumstances are plainly inapplicable here,and thus the only circumstance that could potentially apply isthe first: that the subsequent evidentiary hearing producedsubstantially different evidence on Walker’s Brady claim. But

33WALKER v. KELLY

as other courts have recognized, the "substantially differentevidence" exception "does not apply where a prior appeal hasnot left the issue open for decision." Lyons v. Fisher, 888 F.2d1071, 1075 (5th Cir. 1989) (internal quotation marks and cita-tion omitted); see also United States v. Rivera-Martinez, 931F.2d 148, 151 (1st Cir. 1991). That is because "[i]f, by thesimple expedient of flaunting the law of the case, a trial courtwhich should have deferred to an appellate court’s resolutionof an issue could proceed to address the issue anew, then thedoctrine would disappear into thin air." Rivera-Martinez, 931F.2d at 151.

Because our opinion in Walker II was dispositive of Walk-er’s Brady claim, the district court erred in refusing to grantsummary judgment in favor of Walker and ultimately denyinghis habeas petition. Furthermore, even assuming that the evi-dence adduced at the evidentiary hearing was "substantiallydifferent" than the record in Walker II, the "substantially dif-ferent evidence" exception cannot apply because the districtcourt was foreclosed from relitigating the findings and con-clusions of this Court. To reach a different result, the majoritymodifies previous determinations by this Court, and I mustdissent on this basis.

II.

Walker alternatively contends that even if the district courtwas not strictly bound by the legal determinations of thisCourt, the district court nevertheless erred in finding thatWalker had not established his Brady claim. Specifically,Walker contends that "[t]he factual record developed at theevidentiary hearing in district court did not differ in any mate-rial way from the factual record before this Court when it con-cluded that the prosecution suppressed material, favorableevidence." (Petr.’s Br. 38.) Given this, Walker argues that thedistrict court was not free to come to the opposite legal con-clusions as those reached by this Court. The majority dis-misses this argument in one brief paragraph, maintaining that

34 WALKER v. KELLY

there was no previous merits determination by this Court andthat Walker’s argument "subverts the burden of proof."

First, as discussed above, there was a previous merits deter-mination by this Court in Walker II on Walker’s Brady claim.Second, Walker’s argument does not shift the burden ofproof. Rather, Walker simply sets out an application of thelaw of the case doctrine, which the majority does not address.Instead, the majority charts a new course and concludes thatthe findings and decision of the district court were fully sup-ported by the record.

In essence, Walker’s argument is a specific application ofthe law of the case doctrine. Other circuits, relying on the lawof the case doctrine, have held that a district court is not freeto depart from a circuit court’s legal conclusions where theevidence developed at the district court level was "substan-tially similar" to the evidence considered by the circuit courtin a previous appeal. See, e.g., Africa v. City of Philadelphia(In re City of Philadelphia Litig.), 158 F.3d 711, 720-22 (3dCir. 1998); Williams v. City of Dothan, 818 F.2d 755, 757-58(11th Cir. 1987). Based on the Fourth Circuit’s application ofthe law of the case doctrine as I set out above, this Courtshould adopt this particular holding as well. Because the evi-dence before this Court and the district court was "substan-tially similar" and undoubtedly established all elements ofWalker’s Brady claim, the district court erred in denyingWalker’s habeas petition. In finding otherwise, the majorityadvances several arguments which I need not address becauseeach relies on evidence that was considered and rejected bythis Court in Walker II.

III.

In this case, the district court violated the mandate rule anderred in its conclusions as to all elements of Walker’s Bradyclaim. I would, accordingly, reverse the decision of the dis-trict court and remand with instructions to issue the writ of

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habeas corpus and grant Walker a new trial. I am troubled bythe majority’s choice to reject the conclusions previouslymade by this Court in Walker II. When, as here, actual inno-cence is at issue in a capital case involving such scant physi-cal corroboration, justice requires that we adhere to the well-established law of the case doctrine and specifically, the man-date rule. Thus, I dissent.

36 WALKER v. KELLY